McConnell v FCC
The Court has issued the McConnell decision. Get it here. The main opinion is 171 pages, and pages 5-15 contain a summary of all the rulings. Each of the judges wrote separately on some issues. The Court also issued a ruling on the sealed material -- it appears that much of the information previously sealed must be refiled as part of the public record.
This is the summary (page number are included):
I. DESCRIPTION AND CHART OF THE COURT’S RULINGS
In light of the number of provisions in BCRA being challenged, the complexity of the
issues presented by each challenge, and the variety of positions and voting combinations
taken by the three judges on this District Court, we set forth a brief description and a chart,
on a section by section basis, of the various rulings
A. Title I
Section 323(a) of BCRA bans national parties from soliciting, receiving, directing,
transferring, and spending nonfederal funds (i.e., soft money). Judge Henderson strikes this
section down as unconstitutional in its entirety. Judge Leon, for different reasons, files a
concurrence, joining with Judge Henderson, except with respect to the ban on national parties
from using (i.e., ?directing,? ?transferring,? and ?spending?) nonfederal funds (i.e., soft
money) for ?federal election activity? of the type defined in Section 301(20)(A)(iii). As to
that type of conduct, Judge Leon upholds the constitutionality of Congress’s ban on the use
of nonfederal funds by national parties for Section 301(20)(A)(iii) communications. Judge
Kollar-Kotelly upholds Section 323 (a) in its entirety. Accordingly, Judge Leon’s decision
regarding Section 323(a) controls.
Section 323(b) prohibits state parties from using nonfederal money for ?federal
election activities? as defined in Section 301(20)(A) of BCRA. Judge Henderson strikes
these sections down as unconstitutional in their entirety. Judge Leon, for different reasons,
joins Judge Henderson in a separate concurrence, but only with respect to those party
activities set forth in Subsections (i), (ii), and (iv) of Section 301(20)(A). As to Section
301(20)(A)(iii), Judge Leon upholds the constitutionality of Congress’s prohibition on state
and local parties from spending nonfederal funds for communications that promote, oppose,
attack or support a specific federal candidate. In a separate opinion, Judge Kollar Kotelly
finds Section 323(b) constitutional and concurs with Judge Leon’s discussion of Section 301
Section 323(d) prohibits national, state, and local parties from soliciting funds for, or
making donations, to § 501(c) organizations that make expenditures, or disbursements, in
connection with federal elections, or to § 527 national organizations. Judge Henderson
strikes this section down as unconstitutional in its entirety. Judge Leon, for different reasons,
joins in that conclusion in a separate concurrence. Judge Kollar-Kotelly files a separate
dissent in which she finds the entire section constitutional.
Section 323(e) prohibits, but for certain enumerated exceptions, federal officeholders
and candidates from soliciting, receiving, directing, transferring, or spending, nonfederal
money in connection with any local, state, or federal election. Judge Henderson and Judge
Kollar-Kotelly, for different reasons, in separate opinions uphold the constitutionality of this
section in its entirety. Judge Leon concurs with respect to the restriction on federal
officeholders and candidates receiving, directing, transferring or spending any nonfederal
funds in connection with any federal or state election, but files a separate dissent with regard
to any prohibitions on a federal candidate, or officeholder, from soliciting funds for the
Section 323(f) prohibits state officeholders and candidates from using nonfederal
funds for public communications that refer to a clearly identified candidate for federal office
and that promote, oppose, attack, or support a candidate for this office. Judge Leon upholds
this section in its entirety. Judge Kollar-Kotelly concurs with Judge Leon’s opinion. Judge
Henderson, dissents and finds the entire section unconstitutional.
B. Title II
Section 201 of BCRA sets forth a primary, and ?backup? definition, of an
?electioneering communication? (i.e., so-called ?issue ads?). In addition, it sets forth certain
disclosure requirements for those who fund these electioneering communications. Judge
Henderson strikes down both the primary and backup definition as unconstitutional. Judge
Leon, for different reasons, concurs in her judgment with respect to the primary definition.
Judge Kollar-Kotelly dissents and upholds the primary definition as constitutional as
discussed in her separate opinion. With respect to the backup definition, Judge Leon, who
writes a separate opinion, upholds its constitutionality with its final clause severed. Judge
Kollar-Kotelly, as expressed in her opinion, concurs in that conclusion solely as an
alternative to this Court’s finding that the primary definition is unconstitutional. Finally,
with regard to Section 201’s disclosure requirements, Judge Kollar-Kotelly and Judge Leon,
for the reasons set forth in the per curiam opinion, uphold their constitutionality with one
exception. Judge Henderson strikes down the disclosures requirements in a separate dissent.
Section 202 provides that disbursements by persons for electioneering
communications, or contracts to purchase the same, that are coordinated with either a federal
candidate or a candidate committee, or a political party committee will be treated as
contributions to that candidate’s campaign or political party committee. Judge Kollar-
Kotelly and Judge Leon, for the reasons set forth in the per curiam opinion, find this section
constitutional. Judge Henderson, in a separate dissent concludes that this Section is
Section 203 of Title II prohibits labor unions, corporations and national banks from
using money from their general treasury to fund ?electioneering communications,? as defined
by Section 201. Instead, under Section 203, such communications must be paid from a
separately segregated fund (?SSF?). Section 203 also includes an exception from the SSF
requirement for certain nonprofit corporations (i.e., the ?Snowe-Jeffords exception?). Judge
Kollar-Kotelly upholds this section as constitutional. Judge Leon joins Judge Kollar-
Kotelly’s opinion upholding the constitutionality of this section as it applies to the backup
definition in Section 201. Judge Henderson strikes down this Section as unconstitutional in
its entirety. Judge Kollar-Kotelly and Judge Leon additionally uphold the disclosure and SSF
requirements as well as the Snowe-Jeffords exemption provision for certain nonprofit
corporations organized under Sections 501(c)(4) and 527 of the Internal Revenue Code in
their respective opinions.
Section 204 (?The Wellstone Amendment?), in effect, withdraws the Snowe-Jeffords
exception of Section 203. Judge Henderson strikes down Section 204 in its entirety. Judge
Leon concurs in her result as it applies to MCFL exempt organizations only. As to nonprofit
corporations that do not qualify for the MCFL exemption, Judge Leon concurs with Judge
Kollar-Kotelly’s conclusion, but for different reasons, in upholding Section 204 as it applies
to non MCFL organizations.
Section 212 provides certain reporting requirements for independent expenditures.
Judge Kollar-Kotelly and Judge Leon, for the reasons set forth in the per curiam opinion,
conclude that challenge to this provision is not ripe for review, and therefore hold that the
Court does not have jurisdiction to resolve the plaintiffs’ challenges at this time. Judge
Henderson dissents from this view and finds Section 212 unconstitutional in its entirety.
Section 213 requires national parties, in essence, to choose between making
coordinated expenditures under the Party Expenditures Provision or unlimited independent
expenditures on behalf of their federal candidates. All three judges concur that this section
is unconstitutional. Judge Henderson’s opinion includes a discussion of her separate reasons.
Judge Kollar-Kotelly concurs in Judge Leon’s separate opinion on this section.
Section 214 addresses coordinated expenditures paid for by persons other than party
committees and candidate committees. Section 214 repeals the current FEC regulations on
coordinated expenditures, and directs the FEC to promulgate new regulations that do not
require ?an agreement or formal collaboration to establish coordination.? Judge Kollar-
Kotelly and Judge Leon, for the reasons set forth in the per curiam opinion, find that the
plaintiffs’ challenge under Section 214(b) and Section 214(c) is nonjusticiable and the Court
therefore lacks jurisdiction to consider their challenge. As to Sections 214(a) and 214(d),
however, they find those sections constitutional for the reasons set forth in the per curiam
opinion. Judge Henderson dissents, finding the Section unconstitutional in its entirety.
C. Title III and V
Sections 304, 316, & 319, collectively known as the ?Millionaire Provisions,? allow
opponents of self-financed candidates, and in certain circumstances, to raise money in larger
increments and accept unlimited coordinated party expenditures. All three judges conclude,
for the reasons set forth in Judge Henderson’s opinion, that this Court lacks standing to
entertain challenges to these provisions.
Section 305 denies a candidate the ?lowest unit charge? for broadcast advertisements
on radio and television unless the candidate promises not to refer to another candidate in his
or her advertisements. For the reasons set forth in Judge Henderson’s opinion, all three
judges conclude that this Court lacks standing to entertain the plaintiffs’ challenge at this
As explained in Judge Henderson’s opinion, the Court similarly finds that the
plaintiffs do not have standing to challenge Section 307, which increases and indexes
Section 311 establishes certain disclosure requirements for the sponsors of
electioneering communications. Judge Kollar-Kotelly and Judge Leon, for the reasons set
forth in the per curiam opinion, uphold this provision as constitutional. Judge Henderson,
dissents, and finds this section unconstitutional for the reasons set forth in her opinion.
Section 318 prohibits donations by minors to federal candidates, or to a committee of
a political party. All three judges agree that this section is unconstitutional. Each judge
writes a separate concurrence setting forth his/her reasoning as to this section.
Section 504 requires broadcast licenses to collect and disclose records of any request
to purchase broadcast time for communications that ?is made by or on behalf of a legally
qualified candidate for public office? or that relates ?to any political matter of national
importance,? including communications relating to ?a legally qualified candidate,? ?any
election to federal office,? and ?a national legislative issue of public importance.? Judge
Henderson finds this section unconstitutional. Judge Leon and Judge Kollar-Kotelly, concur
in that result, but not in her reasoning. Judge Kollar-Kotelly concurs in Judge Leon’s
separate opinion on this section.